Conte isn't deterred by ruling
SAN FRANCISCO – Victor Conte, mastermind of the Bay Area Laboratory Co-Operative, is talking and the judge in the Barry Bonds federal perjury case on Wednesday signed the latest version of the government order that has made possible the release of key grand jury testimony.
Conte and the other three original defendants in BALCO are likely to be free to talk to the media about the now unprotected documents. The first bit of information disclosed was confirmation that boxer Shane Mosley injected himself with the doping agent EPO before a fight against Oscar De La Hoya in 2003.
Though the government was granted its request that sealed materials remain sealed, experts say much of the long secret case will now likely become public. "Witnesses or defendants are free to talk," said Charles La Bella, a former U. S. attorney and former chief of the criminal division for the Southern District of California who now practices criminal defense law in San Diego. "It's a question of freedom of speech. By talking about documents they could virtually release everything without releasing the documents themselves."
Why would the government have been compelled to amend the very order it just requested last week? Perhaps because prosecutors did not want to be accused of leaks.
"The defense attorneys did not want the government accusing them of somehow violating sealing orders," said David Schindler, a former assistant U.S attorney and partner at Latham and Watkins. "So they wanted to understand what exactly the government had intended. When the government went back and reviewed their original order, they likely concluded it was sufficiently ambiguous. Hence, they filed the amended order."
The rule clarification may also be a warning shot to the original defendants – but it does not appear it will stop Conte from talking.
"Absent a protective order, I don’t think there is anything in the federal rules that prevents Conte from disclosing whatever he wants to disclose," said Bill Edlund, an attorney who has worked on cases before Judge Illston that involved protective orders.
Added La Bella: "I think [Conte's] in a situation anomalous to a grand juror. A grand juror is not prohibited from talking about his testimony. A witness is free to say whatever he wants."
A spokesman for the U.S. Attorney’s office said the amended order was to "clarify the previous order." But the only thing the government has made clear is that it will not "make public" the files or unseal previously sealed materials.
Even in its Monday filing, the government did not argue specifically that Conte and the other original defendants are prevented from talking to the media.
